Lowi v. David

• Decision Date: 28 January 1924
• Docket Number: 23756
• Citation: 98 So. 684,134 Miss. 296
• Court: Mississippi Supreme Court
• Parties: LOWI et al. v. DAVID

98 So. 684

134 Miss. 296

LOWI et al. v. DAVID

No. 23756

Supreme Court of Mississippi

January 28, 1924

Division B

APPEAL from circuit court of Lauderdale county, HON. C. C. MILLER Judge.

Suit by Ike Lowi and others against O. L. David. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

Judgment reversed and cause remanded.

S. M Graham, for appellants.

Appellee is not an innocent purchaser for value without notice, for the reason that he holds under a quit-claim deed only. 39 Cyc. 1693B; Smith & Montgomery v. Winson & Lawson, 2 How. 601; Curr v. Freeman, 33. Miss. 292; Learned v. Corley, 43 Miss. 678. To the same effect are: Oliver v. Platt, 3 How. (U.S.) 333; May v. Le Claire, 11 Wall. (U.S.) 217; Woodfolk v. Blunt, 3 Hays (Tenn.) 147.

Occupancy by a tenant of the appellant's was as effective notice to appellee as would have been the occupancy by appellants in person. If appellants had acquired a perfect title to the strip in question by fencing same and occupying it exclusively for more than ten years, such perfect title was equivalent to color of title, and this made it unnecessary thereafter to keep this strip of land under fence when occupied in part, whether by appellants or their tenant, as the occupancy of any part of the premises by appellants or their tenant after acquiring a good and perfect title was equivalent to occupancy of the land extending to the boundary fence which had stood for so many years. Jones et al. v. Gaddis, 67 Miss. 761, 7 So. 489; Niles et al. v. Winefred Davis, 60 Miss. 750.

When a person acquires a good and perfect title he does not have to keep the land under fence in order to protect that good and perfect title. There is no statutory requirement in Mississippi for the recording of any except paper titles or written titles and without any statutory enactment a title by adverse possession does not have to be recorded. Ridgeway v. Holliday, 59 Mo. 444; Schall v. Williams Valley Railroad Company, 35 Pa. 191; 2 Corpus Juris, 255. See, also, Faloon v. Simshauser, 130 Ill. 649; East Texas Land Company v. Shelby, 17 Tex. Civ. App. 685; Gregor v. Thompson, 7 Tex. Civ. App. 32; Canada Loan Company v. Garrison, 16 Ont. 81.

There was never any break in the actual holding under fence until the title had ripened to the enclosed land, and if the claim ripened into a perfect title it has been continuously held by actual occupancy of the tenant.

F. V. Brahan, for appellee.

The question is whether a person acquiring by adverse possession a strip of land beyond the calls of his deeds is required to have either record evidence of such title, or in default thereof be under duty to maintain the boundary fence at its original location, or would the possession of the land by a tenant after the acquirement of the additional land by adverse possession be notice to purchasers without notice of his title acquired by adverse possession in the absence of an inclosure, or of a title appearing of record.

There was no notice, by fence, or otherwise, of any adverse claim to the ground when David bought it, and, most assuredly, he is an innocent purchaser for value, and should be protected in his rights. 2 Corpus Juris, pages 37, 60, 61 and 62; Parkersburg Industrial Company v. Schultz, 43 W.Va. 470, 27 S.E. 255.

What constitutes an adverse possession is a question of law; but the intention of the possessor, which is always material in determining questions of adverse possession, is a fact which alone can be ascertained by a jury. 35 Miss. 490. See, also, Grafton v. Grafton, 8 S. and M. 77.

The burden of proof was on Lowi to prove adverse possession, and his intention to claim against the world, and the knowledge of such intention on the part of the real owner, and I submit he has failed.

OPINION

ETHRIDGE, J.

The appellants were the plaintiffs below and brought suit for the possession of a tract of land in the city of Meridian, being a strip three feet wide, lying on the east end of the lot described as beginning "eighty feet north of the southwest corner of block 86, Ragsdale survey of the city of Meridian, and running north forty-five feet, thence east sixty-two and five tenths feet, thence south forty-five feet, thence west sixty-two and five tenths feet to the point of beginning. Said strip of land being three feet east and forty-five feet north and south off of the east end of the above described lot."

A plea of not guilty was filed, and a special notice that the defendant would claim the value of fifty dollars for a defense, and the taxes paid upon the said lot. It appeared from the evidence that the appellant's ancestor, L. Lowi, purchased the east one-half of the block in which said lot was situated about the year 1884 and that he built a fence on the western side of his lot, separating, as he supposed, the east one-half of the block from the west one-half of the block, and remained in the possession of the land east of said fence for more than ten years, claiming to be the owner thereof. This much of the plaintiffs' evidence is without contradiction. Plaintiffs' witnesses testified that the fence was maintained and was where originally located at the time the defendant, David, purchased the lot owned by him lying west of the Lowi property. But the defendant, David, testified there was no fence between the said lots when he purchased said lot and he had no knowledge of the claim of Lowi to the property in question; that he was a purchaser without notice, for value, etc.

The court gave for the defendant the following instruction:

"The court charges the jury for the defendant, O. L. David, that the plaintiff has neither proven any title to the property sued for by proper title, or a common source of title, and relies only and solely upon adverse possession for a period of more than ten years, and the court further instructs the jury for the defendant that, before the...